Bush attorneys who wrote terror memo face backlash
SAN FRANCISCO — Pressure is mounting against two former Bush administration attorneys who wrote the legal memos used to support harsh interrogation techniques that critics say constituted torture.
John Yoo, a constitutional law professor at the University of California, Berkeley, is fighting calls for disbarment and dismissal, while Judge Jay Bybee of the U.S. 9th Circuit Court of Appeals faces calls for impeachment.
Justice Department investigators have stopped short of recommending criminal charges, but suggest in a draft report that the two men should face professional sanctions. A number of groups across the country agree.
“We believe there is a lot of evidence to suggest that war crimes were committed,” said Laura Bonham, deputy director of the Progressive Democrats of America. “We believe the memos provided the Central Intelligence Agency with the cover they needed to begin torturing detaines for information.”
Bybee and Yoo worked in the Justice Department’s Office of Legal Counsel following the Sept. 11, 2001, terror attacks and played key roles in crafting the legal justification for the interrogation techniques.
The draft report from an internal Justice Department inquiry sharply criticizes Yoo and Bybee and recommends referring their cases to state bar associations for possible disciplinary actions, a person familiar with the inquiry said. The person spoke on condition of anonymity because he was not authorized to discuss the inquiry.
Action was not recommended against a third lawyer, Stephen G. Bradbury, who was head of the office at the time the memos were created, a person familiar with the inquiry said. The person, who also was not authorized to publicly discuss the investigation, said investigators found that Bradbury played a lesser role in the creation of the memos. Bradbury is now in private practice.
The long-awaited report is still in draft form and subject to revisions. Attorney General Eric Holder also may make his own determination about what steps to take once the report has been finalized.
Yoo’s attorney, Miquel Estrada, would not comment, citing an agreement with the Justice Department not to discuss the case. Bybee’s attorney, Maureen Mahyoney, did not return a message seeking comment Wednesday.
But at a spirited forum last month on the campus of Chapman University School of Law where Yoo is visiting professor, he defended his role in establishing the legal rationale for using waterboarding and other severe interrogation techniques.
“Three thousand of our fellow citizens had been killed in a deliberate attack by a foreign enemy,” Yoo told a packed audience on the Southern California campus, according to the Los Angeles Times. “That forced us in the government to have to consider measures to gain information using presidential constitutional provisions to protect the country from further attack.”
“Was it worth it?” he asked, brushing off the reproachful reaction. “We haven’t had an attack in more than seven years.”
John Eastman, dean at Chapman, defended the memos.
“He wrote a comprehensive legal analysis of a gray area of the law,” Eastman said. “I think John’s legal analysis taps into the founders’ understanding of the executive.”
Yoo, 41, who worked for the Justice Department from 2001 to 2003, has drawn intense criticism and protests since his role in the interrogation memos became public in 2004.
In December, the Berkeley City Council, known for wading into politically charged national and international issues, passed a measure urging the federal government to prosecute Yoo for war crimes.
Human rights and anti-war activists are planning a demonstration at the Berkeley School of Law’s May 16 commencement ceremony to press for Yoo to be fired.
“It’s unconscionable that the legal architect of the torture apparatus is teaching the future generation of lawyers and judges at UC Berkeley,” said Stephanie Tang, an organizers with the group World Can’t Wait.
Robert Cole, a professor emeritus at Berkeley’s law school, said he believes the university should conduct its own investigation to determine if Yoo’s work for the Bush administration violated the campus’ faculty code of conduct.
“The university has got to protect its integrity,” Cole said. “Every professor we put in the classroom has to have professional competence and ethical integrity.”
California Attorney General Jerry Brown, a likely Democratic candidate for governor, said the memos raised questions about whether Yoo should be allowed to teach law at UC Berkeley and called for a full accounting.
“This is not something that should be swept under the rug,” he said.
Christopher Edley Jr., Berkeley’s law school dean, has rejected calls to dismiss Yoo and says the university doesn’t have the expertise or resources to conduct an investigation involving classified intelligence. A tenured professor would have to be convicted of a crime that demonstrates unfitness to be a faculty member to be dismissed by the university.
“Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry,” Edley said in a statement. He added that Yoo “remains a very successful teacher and prolific (but often controversial) scholar.”
In Nevada, debate over Bybee’s role has been more muted, largely playing out on the opinion pages and among his colleagues at the William S. Boyd School of Law at the University of Nevada, Las Vegas. Bybee taught constitutional and administrative law and civil procedure from 1999 until 2001 and remains on the faculty.
Legal colleagues, while praising Bybee as a scholar and caring colleague, have criticized the memos, particularly for what some of them say was legal sloppiness and faulty constitutional logic not indicative of his other work.
John Podesta, president of the liberal Center for American Progress and the leader of President Barack Obama’s transition team, said, “If he would do the right thing, he should just simply resign.”
If he doesn’t quit, Podesta said, he should be removed from office.
Nevada Republican Sen. John Ensign, who with Sen. Harry Reid, D-Nev., sponsored Bybee for the federal judgeship, has defended him and said calls for his impeachment were “outrageous.”
“To call for him to be impeached when he was trying to give the proper legal advice is just ridiculous,” Ensign told the Las Vegas Review-Journal.
Reid, who has said he was disturbed by the memos, has taken a wait and see attitude.
Rep. Jerrold Nadler, D-N.Y., a member of the House Judiciary Committee, said impeachment was a “possibility a little down the road,” but said he first wanted to see the pending Justice Department report.
He said if the report indicates “Bybee violated professional ethics, we’ll have to see whether a special counsel is appointed and the impeachment issue will come after that.”
Associated Press Writers Paul Elias in San Francisco, Tom Tait in Las Vegas, and Devlin Barrett and Larry Margasak in Washington contributed to this report.
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